Walters v. Walters

• Decision Date: 12 May 1942
• Docket Number: 45842.
• Parties: WALTERS v. WALTERS et al.
• Court: Iowa Supreme Court

3 N.W.2d 595

231 Iowa 1267

WALTERS v. WALTERS et al.

No. 45842.

Supreme Court of Iowa

May 12, 1942

Breen, Breen & McCormick, of Fort Dodge, for appellant.

A T. Horton, of Pomeroy, and Gray & Gray, of Rockwell City for appellee Jesse Walters.

GARFIELD Justice.

On December 11, 1930, Wayne Walters as plaintiff procured a divorce from Mae Walters as defendant in the district court of Pocahontas county. The decree, which was duly recorded, provided "Wherefore it is ordered and adjudged that plaintiff have a divorce from defendant and the bonds of matrimony be and they are hereby dissolved and defendant is given judgment that plaintiff pay her the monthly sum of $12.00 from this date until their child Craig shall become 16 years of age and she is given the custody of said infant."

The monthly award of $12 was pursuant to a written stipulation between the parties.

In February, 1941, Wayne Walters acquired under the will of his grandfather an undivided half interest in forty acres of land in Pocahontas county. On April 3, 1941, the divorced wife caused execution to issue on the purported judgment for a monthly allowance and on the same date levy was made upon Wayne's interest in the land. On April 10, 1941, Jesse Walters, Wayne's father, claiming that Wayne owed him $2,000, brought suit against his son aided by attachment against the land. Pursuant to a settlement of the attachment suit (which appears to have been a friendly affair) on April 21, 1941, Wayne executed to his father a quitclaim deed of his interest in the land in controversy. On May 3, 1941, sheriff's sale was had under the execution issued at the instance of the divorced wife. The land was sold to her and sheriff's certificate of purchase issued.

On May 8, 1941, Jesse Walters, the father, filed this motion to set aside the sale and sheriff's certificate because "the execution was issued without authority in that the divorce decree did not render any judgment for alimony." The trial court held that the monthly allowance in the divorce decree did not amount to a judgment which would support the issuance of an execution; that the execution and sale thereunder were therefore void and should be set aside. The divorced wife has appealed. The sole question presented is whether the monthly allowance contained in the divorce decree constitutes a judgment or order upon which execution could issue. We hold that the trial court erred and that the award of monthly payments was sufficient basis for the issuance of the execution.

Section 11648, Code 1939, provides: "Judgments or orders requiring the payment of money, * * * are to be enforced by execution. * * *"

Code, section 11567 provides: "Every final adjudication of the rights of the parties in an action is a judgment; * * *."

The award of support money in the above quoted portion of the divorce decree amounts to a judgment or order for the payment of money, within the meaning of these statutory provisions.

It is the general rule that where payment of alimony is to be made in instalments, execution may issue to enforce payment of all past due instalments. 27 C.J.S., Divorce, § 265, p. 1061. See Hagemann v. Pinska, 225 Mo.App. 521, 37 S.W. 2d 463, 465, and citations; Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L.R.A., N.S., 976; Beesley v. Badger, 66 Utah 194, 240 P. 458. As tending to support our decision, see Wharton v. Jackson, 107 Neb. 288, 185 N.W. 428. As having some bearing, see Bennett v. Tomlinson, 206 Iowa 1075, 1078, 221 N.W. 837. Appellee, in his attack upon the execution sale, made no attempt to show that any of the monthly allowances awarded appellant had been paid nor that the boy had become 16 years of age, his sole contention being the insufficiency of the provisions of the decree to warrant issuance of execution.

There are numerous authorities dealing with the question whether a decree for alimony payable in future instalments constitutes a lien on property of the husband, if the decree does not specifically so provide. See annotation on this subject in 79 A.L.R. 252. A number of cases hold that unpaid instalments become a lien as they accrue. See authorities last above and also Warren v. Warren, 92 N.J.Eq 334, 112 A. 729; Forbes v. Jennings,124 Or. 497, 264 P. 856; 27 C.J.S., Divorce, § 268, p. 1066. We deem it unnecessary to determine this question, however. Here, appellant because of the levy under the execution had a lien, independent of the judgment, from April 3, 1941, the time of such levy. Mudge v. Livermore, 148 Iowa 472, 475, 123 N.W. 199; Stahl v. Roost, 34 Iowa 475; 23 C.J., p. 490, sec. 334; Hawkeye Ins. Co. v. Maxwell, 119 Iowa 672, 675, 94 N.W. 207. This was before appellee caused the land to be attached and before the making of the deed under which he claims. Appellant's rights as purchaser at the...